Federal Law Provides Clearer Protection for Pregnant Workers

The United States Equal Employment Opportunity Commission (“EEOC”) recently published a guidance piece that is useful for both employees and employers. One particular article of interest is a description of the legal rights for pregnant workers under federal law. If you’re an employer, it’s important to recognize that you may be required to provide further accommodations now than in the past to your pregnant employees.

The EEOC’s guidance article has three major directives. First, an employer cannot discriminate on the basis of a past or present pregnancy, an ability or intent to become pregnant, a medical condition related to pregnancy, or an abortion. Similarly, an employer cannot harass an employee based on these same considerations. Finally, and potentially most importantly, the employer appears to now be under a heightened expectation to make accommodations for a pregnant employee.

In providing guidance on the issue of a heightened right to accommodations, the EEOC delivered its message in the form of a hypothetical question and answer format as reproduced below:

Q: What if I am having difficulty doing my job because of pregnancy or a medical condition related to my pregnancy?

You may be able to get an accommodation from the employer that will allow you to do your regular job safely.”  Examples include altered break and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions, and permission to work from home.

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You don’t need to have a particular accommodation in mind before you ask for one, though you can ask for something specific.  However, you should know that the Americans with Disabilities Act (“ADA”) doesn’t require your employer to make changes that involve significant difficulty or expense.  Also, if more than one accommodation would work, the employer can choose which one to give you.

Q: What if I can’t work at all because of my pregnancy?

If you can’t work at all and you have no paid leave, you still may be entitled to unpaid leave as an accommodation.  You may also qualify for leave under the Family and Medical Leave Act.

Q: What should I do if I need an accommodation, light duty, or leave because of my pregnancy?

Start by telling a supervisor, HR manager, or other appropriate person that you need a change at work due to pregnancy.  You should inform your employer if the source of your problem at work is a pregnancy-related medical condition, because you might be able to get an accommodation under the ADA.  An employer cannot legally fire you, or refuse to hire or promote you, because you asked for an accommodation, or because you need one.  The employer also cannot charge you for the costs of an accommodation.  Because employers do not have to excuse poor job performance, even if it was caused by a pregnancy-related medical condition, it may be better to ask for an accommodation before any problems occur or become worse.

Under the ADA, your employer may ask you to submit a letter from your health care provider documenting that you have a pregnancy-related medical condition, and that you need an accommodation because of it.  Your health care provider might also be asked whether particular accommodations would meet your needs.

Q: What if there’s no way that I can do my regular job, even with an accommodation?

First, if you are being told by a health care provider that you can’t do your job safely and, for example, need light duty or can’t do your job because of a limitation or restriction, you may want to make sure that it’s really true and that your provider has considered the option of an accommodation that would allow you to do your job safely.

If you really can’t do your regular job safely, even with an accommodation, you might be able to get altered job duties under the Pregnancy Discrimination Act (“PDA”).  Depending on how your employer treats non-pregnant employees with similar limitations, the PDA might require your employer to reduce your workload, remove an essential function of your job, or temporarily assign you to a different position if the employer does those things for non-pregnant employees with limitations similar to yours.

The attorneys at Howland, Hess, Guinan, Torpey, Cassidy & O’Connell, LLP are skilled in employment and business law. If you are interested in creating a strategy on how to ensure you are compliant with both the regulations of the Americans with Disabilities Act and the Pregnancy Discrimination Act, call now to arrange for a free consultation at 215-947-6240 or visit us online.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

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The Fate of Social Security Disability Insurance

It seems like every year, new information circulates regarding cuts to social security Social Securityprograms. However, the Social Security Disability Insurance (SSDI) program is experiencing pressures at a significant pace. If not for a last-minute effort by Congress and the White House at the end of last year, SSDI payments could have been reduced by nearly 20% by the end of 2016. While there will be no cuts to SSDI in 2016, the stopgap is only in place until 2022 and programs funds are being drained much quicker than they can be replenished.

Social Security Disability provides financial payments to individuals (and potentially members of their family) if they have worked long enough to accumulate sufficient credits and have a medical condition that has prevented them from working or is expected to prevent them from working for at least 12 months or end in death.

To keep SSDI afloat, Congress approved a fund-shifting scheme from the Social Security retirement fund. That was a short-term solution to a problem that is not going way.  The question now, however, is how long will these benefits last and what will the benefits program look like after 2022?

Before Congress will sign off on extending the program beyond 2022, there will be long looks at how to reduce costs and get more people off the books. Other changes to watch for include modifications in program eligibility and substantial modifications to the benefit formula.

If you believe you have a disability which prevents you from working and have not applied for Social Security Disability, it would be wise to consider doing so now. Changes to SSDI are coming, and it’s better to be ahead of the changes than trying to catch up from behind.

The attorneys at Howland, Hess O’Connell have handled Social Security Disability claims extensively over the years. We are experienced in preparing the documentation and supplementing the application in a way which provides our clients with the best chance of obtaining benefits. To schedule a free consultation with an experienced team of attorneys to discuss the possibility of you obtaining social security disability benefits, call 215-947-6240.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.